HICA Education Loan Corporation v. McKinney

Filing 25

ORDER ADOPTING 21 RECOMMENDATION OF MAGISTRATE JUDGE: Plaintiff's 18 Motion for Default Judgment is GRANTED. Judgment shall be enter in favor of Plaintiff and against Defendant in the amount of $8104.21. By Judge Raymond P. Moore on 9/18/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Case No. 12-cv-00218-RM-KLM
HICA EDUCATION LOAN CORPORATION,
Plaintiff,
v.
DANA R. MCKINNEY,
Defendant.
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on the November 26, 2012 Recommendation of United
States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 21) that the
Plaintiff’s Motion for Default Judgment (ECF No. 18) be granted, and that judgment be entered
against Defendant, including prejudgment and post-judgment interest. Defendant has not
responded since the entry of the Recommendation either formally or informally, despite
Plaintiff’s further attempts to contact her, and despite an Order by this Court that the parties file a
Status Report when the case was reassigned to Judge Moore in 2013. (See ECF Nos. 23, 24.)
This Court has reviewed the Recommendation under the applicable de novo standard of
Fed.R.Civ.P. 72(b).

Default judgment may enter against a party who fails to appear or

otherwise defend a lawsuit. Fed. R. Civ. P. 55. “[D]efault judgment must normally be viewed as
available only when the adversary process has been halted because of an essentially
unresponsive party. In that instance, the diligent party must be protected lest he be faced with
interminable delay and continued uncertainty as to his rights. The default judgment remedy
serves as such a protection.” In re Rains, 946 F.2d 731, 732-33 (10th Cir.1991) (internal

quotation marks and citation omitted). Further, “a party is not entitled to a default judgment as
of right; rather the entry of a default judgment is entrusted to the sound judicial discretion of the
court.” Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445, n, at *2 (D. Colo. Mar. 22,
2008) (internal quotation marks and citation omitted).
Having reviewed the record de novo, the Court agrees with Judge Mix that default
judgment is appropriate here. Plaintiff established in the Complaint that Defendant defaulted on
her student loan, and Defendant has thus failed to make any filings or respond in any manner to
this action. The Clerk of the Court entered default against Defendant on March 15, 2012. Since
that time, a Suggestion of Bankruptcy was filed by Plaintiff on behalf of Defendant (ECF No.
14), an automatic stay was imposed, and then the automatic stay was lifted (ECF No. 17).
Plaintiff now seeks default judgment, Judge Mix agreed, and this Court will now order that
default judgment be entered. Defendant is now obligated to Plaintiff for $6753.53 in unpaid
principal, $1342.45 in unpaid interest1 as of December 21, 2011, plus $0.432 per day since that
date, and $8.23 in late charges. In addition, Plaintiff seeks post-judgment interest at the variable
rate to which the parties contracted in the Note or, in the alternative, post-judgment interest
pursuant to 28 U.S.C. § 1961. (ECF No. 18 at 2, n.1.) This Court agrees with Judge Mix’s
analysis on this point (see ECF No. 21 at 4), and post-judgment interest shall be awarded in
accordance with 28 U.S.C. § 1961.
In accordance with the foregoing, the Court ORDERS as follows:

1

This Court’s calculation for unpaid interest is taken from the verified Motion (ECF No. 18), not from Judge Mix’s
Recommendation, which took the amount of unpaid interest as dated from the Complaint.
2
The Complaint and the Motion have two different figures for the rate of interest that continues to accrue.
According to the Complaint, “[t]he note contractually provides for the accrual of interest at a variable rate, which
rate is calculated by the Secretary of the Department of Health and Human Services (Secretary) for each calendar
quarter, and computed by determining the average of the bond equivalent rates for the ninety-one day U.S. Treasury
Bills auctioned during the preceding quarter, plus three percent, rounding this figure up to the nearest 1/8 of 1
percent.” This Court takes its per diem rate from the verified Motion, rather than from the Complaint, given that this
rate is variable and that the Motion was verified and was submitted later in time.